A Penticton judge struck down a woman’s application to have a child custody case against her tossed over a lengthy wait for the trial. (Dustin Godfrey/Western News)

Penticton judge tosses child custody time-to-trial complaint

Though the judge sympathized with the need to speed up matters, he kept the proceedings on track

A Penticton provincial court judge has dismissed a woman’s application to have a child welfare case against her tossed due to a lengthy delay in family court proceedings.

The ruling comes at a time in which the R. v. Jordan ruling from the Supreme Court of Canada has prosecutors and courts scrambling to resolve criminal matters within 18-month timelines set in the case for lower court matters and 30-month timelines set for superior court matters.

Related: Time-to-trial stats improve, but still above provincial standards

The woman, only identified as N.W. in the Feb. 6 ruling published online this week, claimed a 13-month delay in proceedings without any findings was “inordinate and not in the best interest of her children,” calling for the proceedings to be terminated as a result.

The director of Child, Family and Community Services objected to the claim, while the fathers of her children, aged 11 and 15, took no position.

N.W.’s children were apprehended by Child Services on Nov. 4, 2016, and she had agreed in a January 2017 meeting to a parental capacity assessment, assuming the director of Child Services received funding.

But come February, when the director confirmed they received the funding for the assessment, “contrary to her expressed willingness at the case conference, N.W. changed her mind and refused to participate in the assessment.”

Related: Probe finds clogged courts can run smarter, faster

N.W. was later ordered to complete the assessment, along with A.M., the father of her youngest child.

The case was fraught with delays, and N.W.’s application to toss the case was filed on Oct. 30. It was not heard until Jan. 23, due to court delays, but in the meantime the reports on N.W. and A.M. were submitted.

The ruling notes the Child, Family and Community Service Act does call for decisions relating to children be “made and implemented in a timely manner,” but Koturbash also noted that the act “is silent as to the consequences of not completing the protection hearing as soon as possible.”

“A few months in the life of a child as compared to that of an adult can be significant. When several months or years go by, situations can become crystallized and irreversible,” Koturbash wrote, though he suggested N.W.’s own actions ran counter to her call for a timely conclusion to the matter.

“Most of the delays in concluding the protection hearing are the result of actions taken by her. She has changed counsel at least four times, at different times refused to participate in the parental capacity assessment, and made a late request for an assessment regarding A.M.”

Koturbash declined to approve N.W.’s application to revoke the court’s jurisdiction in the matter.

“Despite the timeline being surpassed, given the nature of the allegations, the potential benefit of the parental capacity assessments, the preparation of which occasioned some of the delay, I am satisfied that it is in the best interest of the children to complete the proceedings,” he wrote.

“Nor would it be in their best interests to have them engage in a game of ‘snakes and ladders,’ by returning them, only to see them re-apprehended and required to start the entire process afresh.”

Koturbash did note he took a stern approach to any further delays, and made orders to keep the ball rolling.

On matters regarding the Child, Family and Community Services Act, Penticton’s courthouse ranks among the top-10 in B.C. for court delays, according to the latest time-to-trial report, with an average wait of six months — double the three-month benchmark set by the chief judge and 1.1 months more than the provincial average.

And lawyers have called out Penticton’s courthouse for a lack of court space, while outgoing Judge Gale Sinclair told a room of reporters last week he could see the need for at least another part-time judge to replace him.

The allegations against N.W. were not detailed in the ruling.



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